Can You Ask For Your Sperm Back?

I know it’s been a while since I’ve put up a new post. What can I say? I’ve been less than diligent. To get back on a better track I thought I’d offer this little story. A man in Israel donated sperm. A woman, using that sperm, conceived a child. That child is now 2.

The woman, planning to have a second child and wanting that second child to be a full genetic sibling, purchased five extra units of sperm from the same donor via the sperm bank. I gather these have not been used yet.

Meanwhile the donor has had a change of heart. He doesn’t want to be a donor anymore and regrets his past actions. He contacted the sperm bank and asked it to destroy all existing samples of his sperm.

I think the sperm bank complied (though it isn’t clearly stated) but what about the five vials sold to the woman? These no longer belong to the sperm bank. However, I would guess that they are still stored at the sperm bank and it looks like the sperm bank denied her access to it. The health ministry ruled in the donor’s favor (which means it ruled the sample should be destroyed) and the woman appealed to the Israeli Supreme Court.

This scenario makes me wonder about two things: First, does the man have the right to have the sperm bank destroy the vials of his sperm they haven’t sold yet? Second, what about the vials purchased by the woman?

If you think of this as a propery question, it’s pretty easy. The sperm doesn’t belong to the man anymore. As the doctor quoted in the article says, he sold it–was paid for it. He can no more change his mind than if he’d sold a painting he did or some extra cans of paint for his house. Perhaps he can offer to buy them back–but he’s got to right to do so.

But if you look back through the blog you’ll see that we don’t generally construct the transaction where a man provides sperm for use in ART as a sale of a product. That’s one reason why some insist on calling him a “donor.” The money that is paid to him is payment for a product–it’s some compensation for the time and effort the donor has devoted to providing the sperm.

Even so, the sperm isn’t his anymore. Under this view, I think he’s given it away. And I would expect that the contract prepared says that he isn’t going to get it back.

You could, however, decide that contracts should say that–at least as far as the sperm banks go. Perhaps we ought to provide that a sperm provider has a right to retrieve (or have destroyed) all samples of his genetic material that are still at the sperm bank. This would allow a man to change his mind, at least to some degree.

But it doesn’t answer the second question–the one about the sperm in possession of the woman. Notice (and this might be important) that in Israel he is a necessarily and permanently anonymous donor. I mean, you could always try to use DNA testing etc. to track him down, but you are not supposed to do that and the law certainly doesn’t encourage it.

Anyway, she did buy the sperm, I think. This is more like a commercial transaction. And I don’t quite see how the bank can now insist that it gets to destroy the sperm. After all, once it was hers she could have taken it with her and stored it somewhere else (and perhaps she should have). It’s hers.

Again, I suppose you could structure things differently to try to accommodate men who change their minds. You could refuse to sell a woman additional sperm–insisting she only buy it as she was planning to use it. That way you wouldn’t face this situation because all his sperm would remain the property of the sperm bank until it was used.

Now I know that some of you are dead-set against the whole third-party sperm thing and that the effort to insure anonymity here will strike others of you as wrong-headed. From those perspectives I think it might be easier to reach the conclusion that the sperm should be destroyed.

For all that I think that the sperm isn’t the man’s anymore, maybe it should be destroyed. I’m not particularly impressed with the interests asserted by the woman because I think we put too much weight on genetics as it is. She can find another donor for a second child. But at the very least, she should be entitled to her money back. The problem (for me is) I’m not sure I can reach this result (sperm destroyed, money returned) on any particularly principled basis.

19 responses to “Can You Ask For Your Sperm Back?”

The problem here is that in the old days the sperm donor provided a reproductive service and his sperm was simply the means by which he reproduced. He was present in the doctors office when the sperm was walked into the next room and put into the woman. He wanted to donate at that moment which is what he did. There is no turning back once his sperm is inside of the woman, then it is hers and not his. I think the fact that he can donate it today and it can be held onto for decades means that he has essentially enslaved himself to provide this service in the future whether he feels like it then or not they essentially own his body and can reproduce him at will against his will even if he is dead. I have a problem with this. He should be able to get out of it but not if his cells are being treated as someone else’s property. And how can we justify treating someone’s cells as property to be bought and sold?
He should not have to buy it back they paid him for his time not his sperm and I think so long as it has not been used that he should be able to take it back or have it destroyed. He donated it for reproductive use and what has not been used should still be his – it is not his problem that the clinic treated what he donated as if it were their propterty to sell its not his problem that someone else bought it – if his sperm is used he will end up with the offspring not the clinic so their use of his sperm continues to involve him and the rest of his family and therefore I say he should be able to change his mind. In fact I know that men who donate their sperm for research purposes are allowed to withdraw their consent at any time I’ll send you the paperwork

I think you are right the problem is created by freezing and storing. Which means there will be a similarly problem with regard to eggs shortly. (And it makes all this echo, for me, with the leftover embryo issues.)

I can theoretically see structuring the arrangment–no matter whether you think sperm is property or something more than mere property–so that there is a right to retrieve your sperm if it hasn’t been sold. But there are problems with this–practical ones. They may not be insurmountable, but I suspect they explain why it isn’t done this way. First, administratively it means tracking everyone and checking with people quite frequently. If a woman chooses a particular sperm provider she might be in each month for six months to try and get pregnant. Having to contact the guy each month (and this would be for each woman) will be a hassle. Of course, you could set it up with the other assumption–if you do not hear from him the samples can be used.

But people also do buy sperm in advance and set it aside, often for siblings. This you couldn’t do. And indeed, sperm banks would have to rethink their model–it might not be so useful to keep an array of sperm stored if you can be called up and have it pulled. And would you pay for it in advance if he could come reclaim it? Why shouldn’t he have to buy it back?

Even if the sperm bank doesn’t actually buy the sperm, I think he (the provider) probably signs something relinquishing all control. But there’s no reason you couldn’t change this if you wanted, I guess.

Of course, a lot of what this raises is the whole regret/change of heart question, which is an interesting one in its own right.

Well, of course the way that it did work is they said the donors were medical students when in fact it was either the doctor himself or one of his colleagues in the same office because as you said the donor had to be available to come in to the office for each scheduled appointment which I have been told now by OHSU and UTSW Fertility Departments that its not unusual to do 6 insemination to get a woman pregnant.

In the instances where it really was a med student I’m sure he signed off on each visit or something to that extent, I could check with UTSW.

I would offer this solution compromise for the transfer of frozen sperm (lets not call it sale) I’d say the clinic has to get a wet signature of consent to obtain it from the donor at each visit with a signature as to its disposition and use and storage and then get a seperate signature from the donor each time they are going to transfer their donation to someone elses private custody for storage and or use and then in order to be inseminated with the sperm each time the clinic would have to get a release to send it to a physician for insemination purposes each time and then the doctor would have to get a release before the actual insemination say within 24hrs of the actual insemination. That would ensure that the donor was Alive and consenting to the particular insemination and if it were to be an ivf gig he’d have to consent to the number of embryos attempted in that swell foop so then hes choosing right then to have 8 more offspring whether or not they are implanted hes going to have to assume all 8 are going to live and he’s adding 8 new relatives to the ones he already has. That keeps the donor in control of their own reproductive behavior the way a normal person has

What if a woman donated her eggs to her sister and they froze them (I know that is not common practice but what if) And the sister had a baby and the sister who donated found the experience to be traumatic so she asked her sister not to use the other eggs she withdrew consent to a second pregnancy and her sister fought her and did it anyway?

I think fine if they want to treat sperm as property go ahead I guess they can keep it but the right to reproduce or not reproduce has to remain with the individual. I don’t think that is something that you can really sell to another person. If you don’t want another genetic reproduction of yourself running around you should be able to act on that desire and prevent any further offspring from being born. You should not be forced to have more offspring simply because you signed a contract earlier in your life agreeing to reproduce. Some might look at marriage as such an agreement or forget marriage lets just say freezing of sperm and eggs was not possible at all and you were dealing with someone agreeing to provide fresh gametes to you when you wanted to reproduce. Lets say they agreed they would donate for 5 pregnancies but decided that 3 was plenty and they wanted to stop. Would a judge force the donor to donate twice more?

The sperm may belong to the woman that bought it but the right to reproduce belongs to the man who at one point was willing to donate reproduction and now is no longer willing to do so.

You don’t like that I tie the person to the gene but it is the person donating that will end up with offspring. His genetic material cannot be used by the purchaser without him winding up with more offspring and his relatives winding up with more cousins. He remains involved if his genes are used. So he should be able to change his mind about allowing someone to use the genes he donated for reproductive purposes. There is a reason why those donor consent forms have statements about how they are allowing their genes to be used whether for research or reproduction because its not so much the genes that are important its what he’s willing to allow them to do with his genes because its his body and his family effected he knows that if they use his genes his actions will be causing the existence of another person on earth that is related to him.

I maintain that a man who donates and allows his genes to be frozen has enslaved himself. If he wants to donate he should do it only fresh to be used immediately.

I know you have this idea that there is some right to reproduce that somehow inheres in the sperm or the egg, but I have trouble understanding this. Few people want to be sperm or eggs except to use them for reproduction, so if you’re not getting that entitlement, what are you getting? The whole idea of sperm/egg providers and the banking system in the US (and many other countries) is that you give up the materials with the knowledge that others–maybe known, maybe not–will use them.

As for the woman and her sister–of course, one hopes they work it out but if tthey do not I suppose it comes down to what they agreed to. In general I think courts are going to favor the sister to provided the eggs-because she is on the side of the angels here and because the other woman already has a child. The need to have a second genetic child is probably not going to seem so pressing–but I’m just totally guessing here. No expertise.

It’s hard for me to see the basis on which a court can rule that she has to return the sperm that she purchased. I understand why we might want to set thing up differently in the future (though I don’t necessarily agree with that). But the issue arose here after everyone made their plans and took their actions. I’m fairly confident he didn’t provide the sperm with any condition attached like he got it back.

K, but he will reproduce if his sperm is used. Do you think that one person should own the right to reproduce another person? What if sperm could not be frozen and it were that this donor had signed a contract to inseminate for the clinic forever? Should there be no way for him to exit that contract? If the clinic or the woman can decide not to be inseminated with his sperm should he not equally retain the right not to inseminate her with his sperm?

I think sperm and eggs should be treated differently than property since using it to get pregnant continues to involve the person that the sperm or egg came from…they will become a biological parent their body will be reproduced and if we have reproductive freedom in this country then that freedom must be resident with the individual being reproduced rather than having that freedom be something saleable.

Julie
It is my understanding that people cannot waive their rights to certain things. I know that this is true in the contracts I deal with daily for architectural design services and in construction contracts. I would think given an extreme example that a person cannot waive their right to freedom. If you were to sign a contract agreeing that you would reproduce with someone, agreeing that you would create offspring and become the biological parent of offspring with person X or with unknown people A thru Z, that no court would actually enforce such a contract.
Is it not true that the sperm or the egg is simply a means to that very end? You do need the permission of a person to have their sperm or egg to begin with and you do need specific permission to use it for a specific purpose i.e. reproduction of that person’s body. That person is consenting to become a biological parent so how long is that consent good for and why can it not be withdrawn? Forget the egg and the sperm for a minute and focus on the person who is giving their consent to reproduce with another human being, today they may mean it and tomorrow they may not. This happens with reproduction and people. Today you may want to create offspring with a certain person and tomorrow you may feel differently about that. Divorce is an excellent example of how frequently that happens. I understand that the donor is not planning to raise the offspring, I am only talking about the scientific reproductive end of things and a person’s ultimate right to control whether or not their body is reproduced to create their offspring. If a person does not want any more offspring running around and they earlier agreed to make offspring with someone are they truly screwed? Have they truly sold off their right to decide for themselves whether or not to have anymore offspring and does someone else now own the rights to their body, their dna and own the rights to reproduce them forever? The person themselves is very much connected to the sperm or the egg because they will become a biological parent if their egg or sperm is used. Their nieces and nephews will have 150, 200, 500 full first cousins to avoid dating and mating with. The use of their egg or sperm involves them and their family like no other object for sale would.

It’s certainly true that their are unenforcable agreements and there are all sorts of different reasons why they are unenforcable. For instance, I can agree that I’ll take the garbage out each day and, in exchange, my partner will clean the bathrooms. But no one will make us do these things. And if the garbage is diligently carried out each day but when it is time to clean the bathroom that doesn’t happen, it’s just tough luck.

Even more generally, courts are loathe to order what is called specific performance–to make a person do a thing. But they will do it sometimes. If I enter into a contract to sell you a house and then refuse to sign over the deed they might actually direct me to do exactly that. But it’s the exception rather than the rule–the general rule is courts like to award money damages.

The rationale for the unwillingness to enforce these sorts of agreements is different from one where I might agree to marry someone. Again–no one will enforce that agreement. But here it does have something to do with an idea of freedom.

I think where we are going to part company in thinking about this goes back to how you think about sperm and reproduction. You see the sperm as still essentially belonging to the man. The law doesn’t think about it that way. If the man had not given the sperm but had said he would I have no doubt that no court would force him to produce and deliver sperm. Not a chance. And for just the reasons you say.

But the way I see it (and I think the law is going to generally break my way on this one) he has already produced the sperm and sent it off on its merry way. It is no longer his. It can be used for reproduction but (and I know we disagree on this usage) he is not being called upon to take any additional actions. So I don’t think that courts will see this as being like ordering him to get married to someone or ordering him to produce the sperm.

Actually, as I think about it, from a legal point of view he has no further interest in the sperm. He has no legal relationship with a child produced using the sperm. He owes no obligations. He has no privileges. Strictly thinking in terms of law, he is a stranger to the child and so has no ground to intervene. Or at least, this seems to me the correct way to reason given what little I know about Israeli law.

Thank you so much you did totally validate what I am thinking and so in the old days they called the man a sperm donor but the transaction occurred so fast – he meant it at that moment and it is at that moment that the conception occurred (basically). He could have I suppose tackled the doctor in the hall and knocked the syringe out of his hand to stop it and no one would be worse for the wear. Its the suspended animation of it all its that the freezing of his cells (and do they not always remain his biologically?) the freezing of his cells somehow makes this part of his body someone elses property.

But if it is not sold and theoretically is not suppose to be considered property then what is going on here? The person who paid the clinic fees now just has possession of the donor’s cells right? Right wrong? so confused Julie.

He may have no legal interest but ultimately he is reproducing himself and will be a biological parent once his offspring is born. You can take the legal connection and pretend there is nothing there but medically and socially he has a relative and so does his family and the whole process is part of human reproduction that in theory should remain under his constant control. It does in fresh sperm donation but does not when donated sperm is frozen. I think ethically they need to restructure their contractual arrangements so that the frozen sperm cannot be used for reproductive purposes without wet signed consent within a day of the procedure to ensure the donor is aware alive and consenting to the use every single time as he would be if the sperm was not frozen and he actually had to be there on site at the time of the insemination. Otherwise other people clearly have control over his body and his reproductive freedom. They own him or a part of him anyway.

And I thought it could not be treated as property anyway. Its not owned by anyone it belongs to the body it came from, yes it has been donated but it has not been used yet. It was not sold to the woman in possession of it right? The clinic is paid for its services in storing it and testing it etc, but are they not simply donating it to her as well? They cannot sell it to her as a product right are they not just charging her their handling fees on it? She is in possession of someone else’s sperm and they have consented to allow her to use it but if she has not yet used it, it should not be like its her property and she bought it. He should be free to change his mind about it if it has not been used yet.

I think one could take this view–that sperm is not property and is not alienable (which means it cannot be given away or sold). But I don’t think this is the general view. Sperm is seen as more like blood–which can be given away even where it cannot be sold.

I think the woman using the sperm does actually buy it–by the straw or unit or whatever. There is no pretense of donation at that point. And in those places where this is useful, I don’t think the construction you offer is how the law is set up. She is not in possession of someone else’s sperm, though the sperm came from someone else. It is her sperm.

Now that it’s possible to do a paternity test at just a few weeks with no risk to the child, it should be possible for a man to demand an abortion, since it is considered a “reproductive right” to abort a consensually conceived baby if the female progenitor has a change of heart, and we believe in equal reproductive rights.

As to whether someone should be able to ask for their gametes back, it seems a minor point. We should of course destroy all the sperm banks and egg banks and prohibit unmarried intentional conception. Half-measures, like ending anonymity or allowing people to stop being reproduced, only serve to strengthen the belief that it’s OK, we’ve worked out all the kinks and things that can go wrong. It’s better when it’s obviously bad.

It’s certainly possible to construct a legal world where the priority is given to not reproducing and so if either party wants to not reproduce, the pregnancy must be terminated. That’s not, however, the view our legal system takes and given the anti-abortion sentiments it seems unlikely that things will shift that way–at least to me. .

In any event, the reason a man cannot demand (or prohibit) an abortion isn’t tied to what we know about genetic relatedness. Thus, having more certainty about genetics won’t change the outcome. The law is based on an idea that men and women are fundamentally in different positions during the pregnancy. The woman’s bodily autonomy is concerned while the man’s is not (even if you extend Marilynn’s view that somehow it is still his sperm/his genetic material). Because the woman’s individual autonomy is at issue she gets to make the decisions and he does not. At least that is how the cases all have come out thus far.

1. He was paid for his time not his sperm – that is what everyone wants everyone to believe.

2. If he truly has in the eyes of the law simply “donated” then there was no sale, and could that then be considered as no contract or sale – as no consideration was received for the product?

3. How different would you consider a blood draw/spot from an infant at birth and stored by the hospital and used for research? It was an agreed upon blood draw/spot to do genetic testing on the infant but who owns that spot of blood – the parents on behalf of the child or the hospital who obtained it legally?

This is reminding me of the case of Natallie Evans who had embryos in storage with her partner before she had cancer treatment which destroyed her fertility. After she recovered from cancer they started fertility treatment but then split up. He withdrew consent for her to use the embryos saying he didn’t want to be a father against his will – she went to court to keep the right to use them, and lost. http://news.bbc.co.uk/1/hi/4779876.stm

A truly heartbreaking case but I think the court made the right decision. Of course this is different because Howard Johnston would have been the legal parent. However I think a sperm donor retains the right to decide whether his sperm is used to create children up until the point where it is actually used, irrespective of who owns the actual vials. In the UK this is what the law says.

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Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.